R v Marwan JUBRAEEL (No 2) [2014] NSWSC 1603

Supreme Court New South Wales

Medium Neutral Citation: R v Marwan JUBRAEEL (No 2) [2014] NSWSC 1603 Hearing dates: 10 February 2014 -14 February 2014, 18 February 2014 Decision date: 18 February 2014 Before: Rothman J Decision: 1.Evidence of the possession of weapon and its discharge admissible in accordance with s 137 of the Evidence Act 1995. Catchwords: EVIDENCE - unfair prejudice - no issue of principle Legislation Cited: Evidence Act 1995 Category: Interlocutory applications Parties: Regina (Crown) Marwan JUBRAEEL (Accused) Representation: Counsel: J. Dwyer (Crown) J. Spencer (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) George Sten & Co (Accused) File Number(s): 2012/10783 Publication restriction: None

EX TEMPORE Judgment 1HIS HONOUR: Before the Court is an application pursuant to terms of s 137 of the Evidence Act 1995 that evidence relating to conduct of the accused on a prior occasion or on an occasion in or about the time of the murder or killing be excluded. It is said that the probative value of the evidence is outweighed by the danger of unfair prejudice. 2There are a number of things that I must say preliminary to the ruling. First, that which must be looked at is the danger of unfair prejudice. It is not whether the prejudice is unfair as a matter of concluded view but whether there is a danger of it being unfair. 3The second aspect is that the "prejudice" must be "unfair prejudice". That means it is not simply a question of whether the evidence prejudices the accused's case or assists the Crown's case. That is a given in most circumstances. It is whether the material prejudices the accused's case or prejudices the view of the accused in a manner that is unfair or is likely to lead, or may lead, to the jury making decisions otherwise than on the basis of the material that is before them and that can be used in a proper and fair manner. 4The probative value of the evidence is, in simple terms, manifest. It plainly shows the accused having access to a weapon of a similar kind to that used at the scene of the crime, I hasten to add, on the evidence before the Court, by another. Further it puts the accused in the company of a known co-offender, with whom the joint enterprise is alleged to have been conducted. 5That evidence shows, or could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, namely, that the description of the accused as being a person at the scene of the crime is more likely to have occurred. 6Further, it is probative because it makes more rational the statement by the accused to Ms Bas. That, therefore, is an indirect effect on the probability of the existence of a fact in issue. 7The question is whether the probative value is outweighed. On that question, it seems to me that a number of things must be made clear. 8First, there is no evidence before the Court that the accused had a weapon at the scene. 9Secondly, there is no evidence before the Court that the accused used a weapon at the scene. Indeed, the evidence before the Court is that someone other than the accused used a weapon at the scene. The only evidence that directly asserts or establishes, if believed, that the accused was a person at the scene is the evidence of Ms Bas of the admissions made by the accused or said to be made by the accused. In the scheme of things evidence going to support the believability of that evidence therefore takes on a significance in the trial. This is the indirect probative value to which reference is made above. 10It seems to me that the unfair prejudice to the accused can be overcome largely by the specific directions that I will give in the course of dealing with the case of each party in my summing-up and therefore the probative value of the evidence is not outweighed by its unfair prejudice. 11Having come to that conclusion, I therefore rule the evidence of the possession of the weapon and its discharge admissible, but I make it clear that the directions I will be giving to the jury on the use of that evidence will be directly to the effect that they cannot use that evidence to prove or to draw the inference that the accused was at the scene of the crime. All they can do is use it in a way in assessing whether the accused was a party to the joint criminal enterprises, being the agreement to commit an offence (not the current charge) and assess the evidence of Ms Bas.